Deconstructing and Reconstructing Rights for Immigrant Children

Children rights advocates and scholars alike continue to call for the development of innovative and alternative rights models, which specifically provide for an expansive conceptualization of children’s rights. Central to their calls for reform is a simultaneous recognition that children’s rights must embody agency – a child’s voice (a proxy for autonomy) – free from governmental interference, as well as the establishment of certain fundamental “needs” that place an affirmative obligation on the State to ensure the child has, and affirmatively provide, when necessary. Reimagining children’s rights also requires reforming our laws in such a way that reflects children as inimitable rights holders possessing unique positive rights. Yet, in U.S. immigration law, children are still most often seen as illegal migrants and their status as alien is continually prioritized over their status as children. With a few notable exceptions, immigration law has been stagnant to adopt dynamic models that incorporate rights models that are informed by the developmental needs of children. This Article contributes to the much-needed discourse about how children’s rights should be understood and realized in immigration law. Unlike other areas of the law, U.S. immigration law still affords no legal distinction between children and adults when adjudicating potential forms of relief. Procedurally there are no compulsory child specific accommodations for immigrant children, as there are in family or juvenile court. Moreover, children are held to the same credibility and evidentiary burdens as adults. This Article concludes that international human rights law, specifically the Convention on the Rights of the Child, articulates a workable, comprehensive, framework of children’s positive (or welfare) and liberal rights that can and should be implemented in U.S. immigration law. Specifically, immigration law must at a minimum prohibit the return of a child to a country where the child would face irreparable harm; permit children when appropriate to petition for immigration relief on their own behalf; provide experts trained in child welfare and immigration law to assess the best interests of the child; and provide free legal counsel to children facing deportation